Criminal liability for fraud and recovery of material damage and representation expenses
No. 7525-23-00-1/163 dated July 31, 2023
District Court No. 2 of the Medeu district of the city of Almaty, chaired by Judge Malikova A.Sh., with the secretary of the court session Turapov B.R., with the participation of public prosecutors: – Abdukhanova T.M., Mukhametkali M.E., the defendant – A.E., the defendant's defenders – lawyers of the law office "..." of the Shymkent city Bar Association I.J.I., J.D.E., his defender – lawyer of the Almaty City Bar Association – Sarzhanov G.T., the victim – I.N.T.,
The translator is S.S. S., using audio-video recording tools and the Zoom application, in open court, in a general manner, considered a criminal case in which: A.E.N., born on June 15, 1994, a native of the South Kazakhstan region, a citizen of the Republic of Kazakhstan, secondary education, not legally married, unemployed, lives at the address: Shymkent city, residential district N., house 35, apartment 07, measure of restraint since December 22, 2022, "in custody", previously convicted: by the verdict of the Saryagash district Court of the Turkestan region dated 03.10.2018, he was found guilty under paragraph 01) of part 03 of Article 190 of the Criminal Code of the Republic of Kazakhstan, and was sentenced to 03 (three) years of imprisonment, with the application of Article 63 of the Criminal Code of the Republic of Kazakhstan, the punishment was considered conditional; he was tried on charges of committing a crime under paragraph 02) of part 04) of Article 190 and part 03) of Article 24, part 04 of Article 190 of the Criminal Code of the Republic of Kazakhstan.
The defendant E.A., without making proper conclusions for himself about his initial criminal record, without embarking on a correctional path, through a path not established by a preliminary investigation, in Astana in 2020, received information that .AF LLP had won a public procurement tender for the construction of a multi-storey residential complex at the address: Shygys microdistrict-3a, located on Syganak Street, Astana, is carrying out construction work, the state customer was El-Orda Kurylys Companiyasy LLP, its director was B.E.S..
After that, A. E., in order to carry out his criminal intent, in the first quarter of 2021, he learned that according to the work done by El-Orda Kurylys Company LLP, payment to AF LLP would be paid, and he set about criminal intent, that is, he set the subscriber number of the director of KSMK-AF LLP, H.M. A. +7 777 .., and via the Telegram channel, he called from the previously prepared subscriber number +7 707 .., introduced himself to B.E.S. and informed him that funds would be transferred in the near future based on the work done, and asked for a loan of $ 120,000.
H.M.A. agreed to this request and asked his younger brother H.A.T. to transfer the specified amount to B.E.S., and the latter gave his consent.
On the same day, to the subscriber number H.A.T. +7 701 . through the "Whats app" line, the subscriber number +7 707 called, introduced himself as Berdalin E.S. and said that he was calling on behalf of H.M.A., and asked him to transfer funds to his Sarsenbek driver, S.B. O., and gave the latter's subscriber number +7 775. and he asked me to take him to the city of Almaty.
On May 06, 2021, H.A.T. arrived by plane from Astana to Almaty, and at the subscriber number +7 775. I contacted O.S.B. and asked to meet at 15 Kabanbai Batyr Street. At about 21:30, a Volkswagen Polo car with the state license plate "621 DC 02" drove up to the specified location, which reported that it was ONo. S.B. and received from X No. A.T. 10 packages (100,000 US dollars) folded into a sheet (05/06/2021, the exchange rate of the US dollar it was 427.54 tenge, i.e. equivalent to 42,754 tenge), and H.A.T. agreed to transfer the remaining 23,000 US dollars to him here tomorrow.
Thus, O.S.B., together with his acquaintance Kirgizbaev A.Z., received 10 bundles (100,000 US dollars) of cash from H.A.T., "Yerlan" - according to E.A.'s dictation - packed into a gift box from a flower shop and met at the intersection of Kurmangazy and Masanchi streets in Almaty, and through the owner of the car. The Lexus LX.. brand, state number 515 NMV 05, was handed over to the city of Shymkent as a parcel by the In-driver J.K.B.
On 05/07/2021, at about 10:30 a.m., at the intersection of Kabanbai Batyr Street and Dostyk Avenue, O.S.B. brought 3 packages inside the sheet (US$23,000) (the exchange rate of the US dollar on 05/07/2021 was 427.54 tenge, i.e. 9,833,420 tenge) in cash.
At that moment, having received 3 packages (23,000 US dollars) of cash in a package, O.S.B. - "Yerlan" according to E.A.'s dictation, put them in a gift box from a flower shop and, through the owner of a Toyota Alphard car, state number "470 LC 36", handed them over to Shymkent city as a parcel, driver "In-driver" Sh. Sa..
On 05/07/2021, the owner of a Lexus LX 470 car, state number 515 NMV 05, who arrived in Shymkent, the driver of the In-driver, J. K.B., were friends of the defendant A.E. T.N.K. and A.E.M. They went to Vanovka, Tyulkubassky district, and T.N.K. I met a gift box from an In-driver taxi, and took it to E.A. on purpose, who was waiting in A.E.M.'s car.
Thus, holding a gift box with cash in the amount of about 100,000 US dollars, A. E. entered his house, and N.K. T. and E.M. A. returned home.
And also, from the owner of the Toyota Alphard car, state number "470 LC 36", who arrived in the city of Shymkent, from the driver of the In-driver Sh. Sarybai, at the dictation of A.E. - "Yerlan", taxi driver B.N.S. met a gift box with 3 packs (23,000 US dollars in front of the Dendro Park and along Tolemetov Street, Shymkent, he handed over the specified gift box to an unknown guy who was not identified by the investigation, and delivered the last gift box to the defendant A. E..
Thus, A. E. spent the money obtained by criminal means on his own needs.
As a result of the actions of the defendant E.A., the victim H.A.T. suffered material damage totaling 52 587 420 tenge.
Thus, E.A. committed fraud by deception and abuse of trust, stole other people's property on an especially large scale, that is, committed a criminal offense specified in paragraph 02) of part 04 of Article 190 of the Criminal Code of the Republic of Kazakhstan.
E.A., not limited to the specified criminal offense, committed a criminal offense in the following circumstances.
E.A. in order to carry out his criminal intent, having received information in an unknown way that there is a working relationship between the director of Service LLP I.K. T. and the director of Kaz. G.K., on 07/15/2022 at 14:00 hours, a resident of Almaty, Rayymbek Avenue, 11, called the director's subscriber number Arline Service LLP, K.T. I. +7 777 ... from a pre-prepared number +7 747 845 83 50 , and introduced himself as the director of .Oil, G.K., and asked to borrow 30,000 US dollars (in accordance with the exchange rate of the US dollar on 07/15/2022, it was 478.86 tenge, that is, 14 365,800 tenge).
However, I.K.T. called K.G.'s personal work phone, described the situation, and the latter said that he had not asked for any money.
In this regard, E.A. acted with direct intent aimed at committing a crime, but was unable to complete his criminal intent due to circumstances beyond his control.
As a result of E.A.'s actions, the victim I.K.T. suffered material damage in the amount of 14 365,800 tenge.
Thus, E.A. committed fraud by deception and abuse of trust, that is, he repeatedly attempted to steal someone else's property on a particularly large scale, but was unable to complete his criminal intent due to circumstances beyond his control, that is, he committed a criminal offense specified in part 03 of Article 24, part 04 of Article 190. The Criminal Code of the Republic of Kazakhstan.
In the main trial, the defendant E.A., according to the charges brought against him, completely did not admit the crime committed, the civil claim filed by the injured party, and using his right during the pre-trial investigation, refused to testify, and stating his counter arguments to the interrogations of the victims and witnesses questioned in the judicial investigation testified as follows.
He pointed out that Kh.A.T. and K.T. Izimova, who were recognized as victims in the criminal case, he did not know at all, that he had never seen them before, that there were no hostile relations or conflicts between them, that he had not contacted these victims on his mobile phone at all and replied how to commit It's a fraudulent crime if he doesn't know them.
As well as the testimony of witnesses questioned during the judicial investigation, T.N.K. and A.E.M. (together with the defendant there were fellow villagers, friends with whom he communicates) that the "gift box" went to the village of Vanovka, Tyulkubassky district of Turkestan region, and the "In-driver" was met from a car, and to the testimony of witness N.K. Turlybek, that HE was deliberately handed over to E.A., and the three of them got into the car and returned together, the defendant testified that due to physical and mental pressure from the police officers of Shymkent, Almaty, the above-mentioned witnesses directly point to him, i.e. he indicated that he had not committed this crime at all" and asked for an acquittal (07/11/2023, interrogation time from 11:00 a.m. to 12:00 p.m.).
After hearing the testimony of the defendant, the court questioned the injured party and witnesses in the main trial, studied the testimony of witnesses given during the preliminary investigation, compared these testimonies with the totality of other collected case materials and dwells on the following circumstances below.
After hearing the testimony of the defendant, the court questioned the injured party and witnesses in the main trial, studied the testimony of witnesses given during the preliminary investigation, compared these testimonies with the totality of other collected case materials and dwells on the following circumstances below.
In accordance with the requirements of Article 111 of the Criminal Code of the Republic of Kazakhstan, factual data relevant for the proper resolution of a criminal case are determined by: testimony of the suspect, accused, victims, witnesses; expert opinion; physical evidence; protocols of procedural actions and other materials.
The arguments of the defendant E.A.O. not committing these crimes are refuted by the materials of the criminal case collected during the investigation, his guilt is confirmed by the unified testimony of the victims listed below, witnesses given during the preliminary investigation and during the main trial, and the materials of the criminal case attached to the criminal case.
At the same time, evaluating the given testimony of defendant E.A. in court, the court compares them with other collected case materials, examines each of them in its entirety, and concludes that giving them such testimony as a way to defend themselves against the charges brought against them, using their rights within the framework specified in the law in order to mitigate their criminal liability. responsibility and evasion of criminal liability.
The court comes to this conclusion on the grounds indicated below.
In the main trial, the victim, H.A.T., gave the following testimony.
He pointed out that he and his brother H.M.A. have very good family relations, that they share common incomes, that is, their large-scale construction, restaurant, etc. business, that they regularly help each other, that his brother H.M.A. is the director of "AF" LLP, that the latter contacted On 05.05.2021 at 14:00 hours, he said that his acquaintance, the director of Kurylys LLP B.E.S., contacted him, who asked to borrow 120,000 US dollars, and his brother told him to contact B.E.S.'s mobile number +7 707.... and took the requested funds.
On the same day, his subscriber number +7 701., that is, the number of the victim H.A.T., was called from the subscriber number via the Whats app network +7 707 505 04 52 They introduced themselves: "I am from the gentleman, I am Berdalin E.S." and handed over the subscriber number of the driver named "Sarsenbek"+7 775., and they told us to take the money to Sarsenbek in Almaty.
05.05.2021, i.e. on the day B.E.S. applied, there were no plane tickets, and the victim H.A.T. informed B.E.S. via the Whats app network that he could not fly, and that he had purchased a plane ticket from Astana to Almaty on 05/06/2021.
Thus, H.A.T. was supposed to take off on the morning of 05/06/2021, but the flight was delayed and he flew to Almaty at 20:30 hours. He's at +7 775 .. "Sarsenbeka" wrote a message, that is, he said that upon arrival in Almaty, he would meet with him at 15 Kabanbai Batyr Street in Almaty.
He boarded a plane in Almaty, he was at 15 Kabanbai Batyr Street, apartment 28, Almaty, and took 100,000 US dollars in his hands, contacted Sarsenbek by prior agreement, and they met. "Sarsenbek" arrived at 21:30 hours in a Volkswagen Polo car, state number "621 DC 02".
He opened it in front of Sarsenbek, showed it to him and handed him a plastic bag with 10 packs (100,000 US dollars) that were inside. And he said that he would prepare the remaining 20,000 dollars for tomorrow, and agreed with Sarsenbek that he would collect them from this address.
For tomorrow, 05/07/2021, at about 10:30 a.m., H.A.T. and Sarsenbek met at the intersection of Kabanbai Batyr Street and Dostyk Avenue, and adding another $3,000 to the remaining $20,000, a total of $23,000 in a pack in 3 plastic bags, and opening and showing them I handed the Sarsenbeku to him.
On 05/08/2021, "Sarsenbek" called him and informed him that no one had met the parcel with the money inside in Shymkent. Subsequently, "Sarsenbek" contacted him and said that everything was in order, then H.A.T. had a suspicion "why these funds went to the city of Shymkent."
When it was time to return the funds, H.M.T. called B.E.S. on 05/13/2021. +7 707 505 04 52 but the subscriber number was disconnected.
After that, H.M.T. went to B.E.S.'s office to get his 123,000 US dollars, but B.E.S. replied that he had not asked him for any money, that he had not contacted H.M.T. at all, and he found out that the subscriber number was +7 707. was not a B.E.S. number.
After that, H.A.T. flew to the city of Almaty and made a statement to the police.
The victim also said that he had 123,000 US dollars, that is, the origin of the large funds, explained that they were engaged in a family business, that they were working with even more money, and filed documents with the court confirming the origin of the funds.
The injured party testified that the amount of damage caused by him amounted to 123,000 US dollars, and requested that the defendant E.A. return to the victim material damage in the amount of 52,587,420 tenge and moral damage in the amount of 26,293,710 tenge and that the court impose a sentence of imprisonment for a period of 10 years.
(06/23/2023, the time of interrogation is from 12.00 p.m. to 12.54 p.m.).
In the main trial, witness H.M.A. testified that he is the director of KSMK - AF LLP. In May 2021, his company won the construction of the residential building "Shygys-3A" located on Syganak Street in Astana. For this facility, the director of El-orda kurylys Companyasi LLP, Ye.S.B. said that it was planned to pay them money for the work done. He pointed out that he did not personally know B.E.S., that he had not talked to him on his mobile phone at all, and that they knew each other in absentia.
Thus, on 05.05.2021, at lunchtime, he received a call via the Telegram network from a subscriber number. +7 707 505 04 52 They called his mobile phone (+7 777 ..), introduced themselves to B.E., asked in Kazakh how their work was conducted, and asked him to transfer 120,000 US dollars in debt to him. for 2-3 days.
Then he turned to his brother H.A.T. and told him to take these funds to the city of Almaty, according to B.E.S.'s dictation. On 05/06/2021, his brother H.A.T. flew to Almaty to transfer funds. From A.T. H., only 123,000 dollars were transferred in two tranches to E.S. B.'s people..
On 05/11/2021, B.E.S. had to repay the borrowed funds, and since there was no feedback from him, he called B.E.S.'s mobile phone at the subscriber number on 05/13/2021. +7 707 505 04 52 but the phone was turned off.
After that, he went to work for B.E.S., met with him and asked for his money, but B.E.S. told him that he had not contacted him, had not asked for any money from him, had not taken any money.
Then, realizing that he had been deceived by scammers, he told his brother H.A.T. to go to the city of Almaty and write a statement to the police (06/08/2023, the time of interrogation from 15.38 hours to 16.26 hours).
In the main trial, the victim I.K.T. testified as follows. He said that he is the director of .. SERVICE LLP. On 07/15/2022, at about 2 p.m., a stranger called him from a subscriber number +7 747 845 83 50 , introduced himself as the director of the Board of JSC ".Oil" K.G.J. and asked him to borrow 30,000 US dollars, and after 15 minutes they called him back and said that a man named "Ayhan" would call on behalf of K.G.J. and that the specified funds would be transferred to "Ayhan". Later, "Ayhan" called him from the number +7 707 243 15 23 and he said that he was from K.G.Zh.
Thus, I.K.T. contacted K.G.Zh. and said that he had asked for money, but the latter informed I.K.T. that he had not contacted him at all, and had not asked for any money.
The victim I.K.T. appealed to the court verbally, in writing, and asked to terminate the criminal case against the defendant E.A., asked to be released, that he had no material and moral claim against him.
(06/16/2023, the time of interrogation is from 4 p.m. to 5 p.m.).
In the main trial, witness K.A.Z. pointed to the following. He worked as a taxi driver in Tulpar LLP since 2018, worked as a carrier of people in a Volkswagen Polo car, state license plates "621 DC 02", in January 2021, he met Sarsenbek, O.S.B., at his job, and communicated with the latter in friendly relations, using a mobile phone.B. O. was +7,775 ..
05/06/2021 at about 11:00 a.m. to his number "Whats app" +7 707 . from the subscriber number +7 707 . A man called, introduced himself as "Yerlan", and, telling him that he had previously driven "Yerlan" as a taxi, asked him: "will you be able to meet a person at the airport?", to which he replied that he could not meet him because he had been working all night and had not slept. And he asked K.A.Z. for a reliable person, and said that he needed to go to the same address and collect the money." At that moment, K.A.Z. entrusted this to a reliable person with whom he worked, O. S.B.
On 05/06/2021, when he woke up in the evening, he called O.S.B. and asked about his business, and about a meeting with a person who would bring money, that is, about a meeting with H.A.T. O.S.B. replied that he had not yet met, and then called back and said that he had received large amounts of money, so K.A.Z. and S.B. O. The two of them met at the Merey trading house, located at the intersection of Suyunbai and Rayymbek Batyr Avenues in Almaty, and on the instructions of Yerlan, they received 200 US dollars from the funds in the package for their wages (work), and put the remaining 10 bundles of funds in a gift box at a flower shop located on The intersection of Kabanbai Batyr and Baitursynov streets in Almaty was tied with a red ribbon. And we arrived at the intersection of Kurmangazy and Masanchi streets, and handed over through a Lexus LX 470 car, state number 515 NMV 05, black, which said "Yerlan".
Thus, the two of them completed the task of "Yerlan", called "Yerlan" and informed him that they had sent the parcel.
The next day, 05/07/2021, in the afternoon, he sat with O.S.B. in the dining room located at the intersection of Krylov and Chaplygin streets in Almaty. And at that moment, S.B. Orazbayev said that he had met with A.T. Khamzin at the intersection of Kabanbai Batyr Street and Dostyk Avenue, that he had received 3 bundles of US dollars from H.A.T., put them in a gift box and handed them over to the city of Shymkent through a taxi driver.
He did not see the man named "Yerlan" at all, even if he had, he would not have recognized him, he communicated only through the Whats app network, photos and messages sent by him from the Whats app network were not saved on his mobile phone, "Yerlan"'s phone was also not preserved, as it was as a taxi driver, and was engaged in the transportation and delivery of people and things, he receives various messages a day through the "In-driver", "Whats app", and that he did not recalculate the money inside the package.
(06/08/2023, the time of interrogation is from 3 p.m. to 3:38 p.m.).
In the main trial, witness S.B. Orazbayev testified to the following. He said that he works as a taxi driver for Tulpar LLP, in January 2021 he received a Volkswagen Polo car from the company, the state number "621 DC 02", at that time he was in friendly relations and communicated with the taxi driver of his company "Ansar" K.A.Z., the mobile phone number of K.A.Z. +7 707 ..
On 05/06/2021, when he was in the city, at about 11:00 a.m., his subscriber number was +7 775 . from the mobile phone number of Kirghizbaev A.Z. +7 707 . I called him and offered to accept the order, and said that he would explain the order later. After that, to his mobile application "Whats app" from the subscriber number +7 707 . An unknown man called him earlier, introduced himself as "Yerlan" and informed him that at 4 p.m. at the Almaty airport it would be necessary to meet a citizen named Askhat (victim H.A.T.), and H.A.T. sent him his mobile phone number through the Whats app. +7 701 787 64 13 .
He arrived at the airport area at 3:30 p.m., and at 4 p.m. he called H.A.T.'s mobile phone number +7 701 787 64 13 and the latter informed that the flight was canceled, that he was arriving in the evening at 21:00 hours, that he would contact him himself. On the same day, at 22:00 hours, he was contacted by H.A.T., who asked him to come to the address: 15 Kabanbai Batyr Street, Almaty. He arrived at the specified address in a Volkswagen Polo car, state number 621 DC 02, and met with H.A.T.
At that moment, Yerlan called him through the Whats app and informed him that the package would be delivered by H. A.T.
Thus, H.A.T. showed him a package with 10 packs of US dollars inside and handed it to him. At that moment, in the presence of H.A.T., he called "Yerlan" by phone and said that he had received the package, "Yerlan" asked to hand over the phone to H.A.T., during the conversation, Hamzin A.T. informed "Yerlan" that there were no funds in full, the rest would be transferred tomorrow. After that, O. S.B., on the instructions of "Yerlan", got into his car, took a picture of the money in the package on his mobile phone and sent it to "Yerlan" via the Whats app network.
After that, he, who did not keep such a large amount of money, worried and scared, contacted his friend K.A.Z., and the two of them met on the territory of the Merey trading house located at the intersection of Suyunbai and Rayymbek Avenues, and out of 10 bundles of money in the package, according to the dictation of "Yerlan", they took 200 dollars. Then we went to a flower shop, put money in a gift box and asked to be packed. The flower shop clerk did not know that they had put money in the box. Thus, "Yerlan" ordered him, without asking questions, to give the driver of a Lexus LX 470 car, state number 515 NMV 05, a gift-a box with cash inside, which he met at the intersection of Kurmangazi and Masanchi streets.
Then the two of them took a gift box, boarded a Volkswagen Polo car with the state number 465 BB 02, drove up to the intersection of Kurmangazy and Masanchi streets, approached a Lexus LX 470 car with the state number 515 NMV 05, black, and handed the driver of the car a gift According to the dictation of "Yerlan", they said that it was a "gift to my aunt."
He told A.T. H. that he had photographed the gift box and, saying that everything was correct, sent it via the Whats app network.
On the same day, he and K.A.Z. returned home, and the next day, 05/07/2021, between 09:00 and 10:00 p.m., "Yerlan" called him and told him to meet with H.A.T. and take the remaining funds from him and transfer them through another driver in the same way. In the late afternoon, H.A.T. contacted him and informed him that the remaining funds were ready, and they met at the address where they had previously met, that is, on Kabanbai Batyr Street.
H.A.T. opened the package for him, showed him and handed him three bundles of US dollars. He took the money, took a picture and sent it to Yerlan via the Whats app network, and Yerlan sent him the phone number of the taxi driver S.A.Sh. – "Abdibakyt", subscriber number +7 777., who put the money in a gift box, made it packed and at 16:00 does not remember the exact address, met with the driver Abdibakyt in the area of the first Almaty through a Toyota Alphard car with a state number, the Armenian license plate "470 LC 36" and I handed him a package with money and contacted Yerlan and told him.
On 05/08/2021, S.A.Sh. contacted him and informed him that he had arrived in Shymkent and that no one had met the parcel. He contacted Yerlan, but the latter did not answer the phone. (The witness does not remember whether Erlan's mobile phone was turned off or whether he did not pick up the phone.)
After that, he called H.A.T. and said that no one had met the parcel in Shymkent. At that moment, S.A.S. called him back and said that different people were contacting him, asking to pick up the parcel, and asked who to give it to. He said that if the person who is supposed to pick up the parcel does not come, then he should bring it back to the city of Almaty.
However, within half an hour, "Yerlan" called him back and asked Orazbaev S.B. why he was returning the parcel. O.S.B. explained that since he could not contact him, he told the taxi driver S.A.Sh. "Yerlan" called the driver S.A.Sh. and explained that he had told him to deliver the parcel to the specified person. the face.
Witness O.S.B. explained that he communicated with "Yerlan" by sending messages only through the "Whats app", however, he did not see him at all, did not know him, and also did not save correspondence with each other, photos, because due to the fact that he is a taxi driver, a number of passengers call his mobile phone. that he doesn't have the ability to store them.
(06/08/2023, the time of interrogation is from 11.26 a.m. to 12.44 p.m.).
In the main trial, witness J.K.B. gave the following testimony.
He pointed out that in his Lexus LX 470 car, state number 515 NMV 05, black, he transports people and things between the cities of Almaty and Shymkent through the In-driver application. He told and explained that he downloaded the In-driver app to his mobile phone, with the subscriber number +7 702., and also through this In-driver app, several orders are received per day.
On 05/06/2021, in the evening, he launched the In-driver application and sent a request to the directions Almaty-Shymkent. To his subscriber number +7 702 . a man whose voice he did not recognize called and said in Kazakh: "you are leaving for Shymkent, there is a package, I used to go with you to Shymkent, I know you..." and added that he gave his wife a gift, that his younger brother would meet him at the entrance to Tulkubas, asked him to pick it up, and we agreed that he would be given 5,000 tenge for payment.
On the same day, at about 23:00 in the evening, in order to take a man and a woman from Almaty to Shymkent, he arrived at the Tsentralny residential complex located at 97 Kurmangazy Street, where he put passengers in his car aged about 55-60 years and was about to set off. but less than 5 minutes later, a Kazakh guy between the ages of 30 and 35 brought a gift box packed from the outside (in court investigations it was established that it was K.A.Z.). He put the gift box in the car and when he left for Shymkent, Yerlan contacted him and asked if he had received the package, and on the way he contacted him again and again and asked where he had gone.
On 05/07/2021, at about 06-07 a.m., he stopped at the entrance to Tulkubas, at the bridge to deliver the parcel, and standing on the side of the road, a guy aged about 25-30 years, height 175-780 cm, wearing a cap, large body, approached him and handed him 5,000 tenge and took the parcel (judicial investigation established what is this T.N.K.).
On the same day, at about 23:00 in the evening, in order to take a man and a woman from Almaty to Shymkent, he arrived at the Tsentralny residential complex located at 97 Kurmangazy Street, where he put passengers in his car aged about 55-60 years and was about to set off. but less than 5 minutes later, a Kazakh guy between the ages of 30 and 35 brought a gift box packed from the outside (in court investigations it was established that it was K.A.Z.). He put the gift box in the car and when he left for Shymkent, Yerlan contacted him and asked if he had received the package, and on the way he contacted him again and again and asked where he had gone.
On 05/07/2021, at about 06-07 a.m., he stopped at the entrance to Tulkubas, at the bridge to deliver the parcel, and standing on the side of the road, a guy aged about 25-30 years, height 175-780 cm, wearing a cap, large body, approached him and handed him 5,000 tenge and took the parcel (judicial investigation established what is this T.N.K.).
He pointed out that he did not open the gift box, that he did not know what was inside, that "Yerlan" kept in touch with him on the way, that he did not see "Yerlan's" face, that he contacted only through the "Whats app" network. At the same time, witness Zh.K.B. explained in court that since many orders were received through In-driver, and due to the fact that more than two years had passed since the incident occurred, he could not accurately say the number of the Yerlan, the type of gift box, and its weight.
(06/08/2023, the time of interrogation is from 16.26 to 16.52 hours).
In the main trial, witness S.A.Sh. gave the following testimony.
He said that since November 2020, he has been working as a taxi driver in the direction of Almaty-Shymkent in a Toyota Alphard car with a state license plate, the Armenian license plate "470 LC 36", and on 05/07/2021 to his mobile phone, to the subscriber number +7 777.. They called from a previously unknown subscriber number "Sarsenbek" (S.B. Orazbayev) +7 775 .., and said that he had a parcel in Shymkent, and asked him to pick it up. He agreed to his proposal and arrived at the intersection of Tole bi and Utegen Batyr streets in Almaty at about 4 p.m., and met with O.S.B., took the parcel from the latter and set off along the Almaty-Shymkent highway, also took his passengers and set off. When he reached the city of Shymkent, no one contacted him to pick up the parcel. He contacted the number +7 775 .. O. S.B. and reported that no one had received the parcel. Since no one contacted him, he went to his village of Kazygurt. He stayed at home until the evening, and when he left for Saryagash in the evening, on the way, a number of strangers called him over and over again from mobile phone numbers that he couldn't remember and said they would pick up the parcel. At that moment, not knowing to whom to deliver the parcel, he contacted O.S.B. again and told the situation that had taken place. At that moment, O.S.B. told him to contact him upon arrival in Shymkent, and explained that he would come and pick up the parcel. After that, when he entered the city of Shymkent, he contacted O.S.B., and the latter told him that someone would contact him now. Then he was contacted by an elderly man from the room +7 701 . (during the judicial investigation, it was established that this was the driver B.N.S.), who said that he was waiting in front of the Dendro Park. When he arrived at the specified location, he saw that a Volkswagen Passat car, bright blue in color, was parked along the road, which turned on the headlights (light) and stopped in front of the car. The driver of the Volkswagen Passat approached him and made a payment of 2,000 tenge, consisting of small coins, and took the parcel handed over to O.S.B. At that moment, an unknown person contacted him and asked about the transfer of the parcel. At that moment, it was about 9:47 p.m. And he left to continue his work.
He testified in court that he did not open the parcel, did not pay attention to the weight, appearance, did not save the mobile phone numbers of people who contacted him, and that on the way a man often called him from an unknown number (he does not remember now) and said that: "what is your brother Yerlan?"..." and asked where he had gone.
(06/16/2023, the time of interrogation is from 11.20 a.m. to 12.26 p.m.).
In the main trial, witness B.N.S. gave the following testimony.
He was a driver for several years, and was engaged in the transportation of construction materials. On 05/08/2021, in the evening, a stranger called him from a subscriber number +7 701 528 88 60 He called his mobile phone and said that "he met with him in the summer of 2020 for work, that he brought construction materials to his house located at Shymkent, mkr. Zhailau, St. E.25", introduced himself, and asked to meet a package from the driver of a Toyota Alphard car, with a state license plate, Armenian license plate "470 LC 36", black, who was traveling to Almaty and bring it, and gave the number to S.A.Sh. (subscriber number +7 777 .. He agreed on about 5,000 tenge as payment. That day, in the evening at 9:30 p.m., he called S.A.Sh., and met him in front of the Shymkent Arboretum, took the parcel and, since it was already time to talk, left for the place of conversation on Tolemetova St. When he was sitting on a conversation, he was contacted by an unknown person who said that he would pick up the parcel from the Zhailau neighborhood. He took the parcel, went to an unknown guy who was waiting along the road in a car, received 7,000 tenge for travel and handed the parcel to an unknown person. He pointed out that the latter had driven down Tolemetov Street towards the Shymkent Zoo.
He explained in court that he had not attached any importance to the parcel he had received from S.A.Sh., that now he could not remember the type, weight, shape of the gift box, but he had definitely met it and then a guy he did not know had taken the parcel from him.
(06/16/2023, the time of interrogation is from 12:28 p.m. to 1:15 p.m.).
In the main trial, witness T.N.K. gave the following testimony.
He said that he knew the defendant A.E. well, had grown up in the same village with him, and they had friendly relations. At the beginning of May 2021, A.E. contacted him and said that in the morning he had to go to Tulkubas and meet one parcel.
After that, they arrived for tomorrow at about 05:00-06:00 hours in A.E.M.'s car, they took him out of the house, after that they took A.E., who lives in mkr., 35, and the three of them, the driver A.E.M. At the wheel, In the front seat of A.E., he was sitting in the back cabin and we went to Tyulkubassky district, to the village of Vanovka, to a place near the bridge to meet the parcel. At the dictation of A.E., who was sitting in A.E.M.'s car, he single-handedly took the parcel (gift box) from the car, which stopped at a distance of about 10-15 meters, and handed it to A. Yesenalin, who was sitting in a car. S.T.N.K. In court, he pointed out that when he went to get the parcel, Yesenalin A. looked at him from the bridge, the gift box was not empty, there was an unknown object inside.
Thus, the three of them met the package and returned home. E.A. was the first to stay at his house with a gift box in his arms, he was the second to stay at his house, and A.E.M. returned to his home in his car.
In the evening of the same day, he went home to A. E., and that A. E. gave him 50,000 tenge as payment for meeting the parcel.
He pointed out that he did not attach any importance to the package he had met, did not know why A.E. did not take the package himself, but he did without a single hesitation, and did not know the weight, shape of the package, and what was inside the package (gift box).
Witness T.N.K. fully supported the testimony given by him during the pre-trial investigation, said that he was giving evidence voluntarily, that the subscriber number was +7 702. owned by him, the police officers of Almaty and Shymkent did not exert physical or mental pressure on him.
In his testimony, which he gave during the pre-trial investigation as a witness entitled to protection, he testified that he had been communicating with A. E. since 2020, that for the last 2 years A. E. had built a house in the Turan microdistrict of Shymkent, A.E.'s father K. E.S. works in auditing, that A. Yesenalin rented the City Sport center located along Baitursynov Street in Shymkent and tells him that he opened a cafe a year ago, that he and his friends helped with housework for A. E., and took a small amount of money for payment.
Witness T.N.K. repeated his testimony several times during the judicial investigation, and said that all three of them (he, A.E.M., E.A.) went to receive the gift box package, at the dictation of E.A., and he himself went out of the car and took the package from the driver on purpose, brought it and handed it over In the arms of E.A., who was inside the car, A. E. got down and took the parcel box with him to his home.
He also specifically explained that A.E. had only one mobile phone in his hands, that neither his friends nor he personally took his phone and contacted him.
(06/01/2023, the time of interrogation is from 12.31 hours to 13.05 hours).
In the main trial, witness A.E.M. gave the following testimony. He has the subscriber numbers belonging to him +7 702 007 70 55, +7 775 094 50 00. 07.05.2021 from 05:00 hours to 06:00 hours, at the dictation of A. E., T.N.K. the three of them went in his car, as A. E. was going to meet near the bridge in the village of Vanovka Tyulkubassky After receiving the parcel from Almaty, he was driving a car, and E.A. was sitting in the front seat of the car, N.K. T. he went alone and met the parcel, but he did not pay attention to the type and shape of the parcel and brought it, and since he was sitting sleepy in the morning, he did not pay attention to the appearance and shape of the parcel, namely, but specifically the three of them went in his car and met the parcel and returned home.
At the same time, the witness T.N.K. and A.E.M. explained during the judicial investigation that E.A. walks with only one mobile phone, that they do not use the latter's phone.
(07/03/2023, interrogation time from 3.15 p.m. to 6.01 p.m.), (06/01/2023, interrogation time from 12.05 p.m. to 12.28 p.m.).
Thus, the court heard the testimony of the witnesses questioned in court: K.A.Z., O.S.B., Zh.K.B., S.A.Sh., B.N.S., A.E.M., T.N.K. given by them during the pre-trial investigation and in court, investigated the contradictions between them, evaluated them, and the court has indisputably confirmed that the witnesses K.A.Z., O.S.B., J.K.B., A.S.S. They are a taxi driver who runs between Almaty and Shymkent, that they communicated with an unknown person who introduced himself as "Yerlan" only through the Whats app mobile phone network, that none of the witnesses saw the face of "Yerlan", that all the witnesses confirmed in the judicial investigation that the package was a gift.-the box, however, the specific type, color, shape of the gift box, due to the fact that more than two years have passed, they did not remember that the witness O.S.B., from the hands of the victim A.T. H. the first tranche (05/06/2021), received 10 bundles of US dollars packed in a package, on the second day (05/07/2021) 3 bundles of US dollars in cash in a package, that is, what the victim H.A.T. put in a package of 100,000 US dollars on the first day during the judicial investigation, on the second day he put in the package was 23,000 US dollars and handed over to S.B. Orazbayev, and that O.S.B. and K.A.Z. of the 100,000 US dollars, 200 US dollars were received at the dictation of "Yerlan", and the rest was put in a gift box from a flower shop located at the intersection of Kurmangazy Street and Baytursinova Street, and through the "In-driver" of a taxi driver K.B. Zh., on a Lexus LX 470 car, the state license plate "515 NMA 05" was transferred to the city of Shymkent, that K.B. Zhunisov. Along the way, I repeatedly talked with "Yerlan" through the "Whats app" until I reached the city of Shymkent, where I met a gift-a box with an amount of about 100,000 US dollars inside, in the village of Vanovka, Tyulkubassky district, from the driver Zh.K.B. and in the presence of A.E.M. I handed over to Yesenalin A. who was sitting in the car. S.B. Orazbayeva personally took a gift box from the hands of H.A.T. to the car that on 05/07/2021 the second tranche in 3 bundles of 23,000 US dollars. and according to the dictation of "Yerlan", he put the money, as usual, in a gift box from a flower shop and, through the owner of a Toyota Alphard car, the state number, the Armenian license plates "470 LC 36" of the driver, Sh. Sarybai, conveyed to the city of Shymkent that S.A.Sh. talked several times on the way through the "Whats app". with the Yerlan in Shymkent in front of the Dendro park, witness B.N.S. from the driver Sh. Sarybai. I met the gift box and walked down Tolemetov Street in Shymkent, handed the box to a guy with a long stature who got out of the car, who was standing behind his car, along the road, who was not identified by the investigation.
The reliability of the testimony of the above-mentioned witnesses questioned in court is in no way questioned by the court.
Because they gave uniform, consistent testimony both during the preliminary investigation and during the trial, which establish the circumstances that took place in the case. At the same time, their testimony is linked to the materials of the criminal case studied in court, and the objectivity of their testimony is confirmed. Having examined the materials of the criminal case announced in the judicial investigation - orders on seizures, protocol of seizures, details, covert receipt of information about connections between subscribers and subscriber devices, orders on seizure of information about the date, time, duration of connections between subscribers and subscriber devices, search protocol and other investigative materials, the court comes to the following That is, the victim contacted the subscriber number H.A.T. +7 701 . through the Whats app network at the subscriber number +7 707., introduced himself as E.S. B. also said that he had called on behalf of witness H.M.A., and asked to transfer the money to his driver, "S." – O.S.B., gave the subscriber number +7 775. and he asked me to take him to the city of Almaty.
These calls were confirmed by detailing the incoming and outgoing numbers by the preliminary investigation authorities (case file page 101, volume 01).
It is fixed that on 05/07/2021, A. E., together with his friends N.K. T., E.M. A., went to the village of Vanovka in the Tyulkubassky district of the Turkestan region, where an In-driver taxi met N.K. T. and transferred the above-mentioned funds on purpose to A.E..
The materials of the criminal case established that during the analysis of the base station under the bridge No. LAC(TA)-17251CELL ID-8087 Tyulkubassky district, Tyulkubas settlement (Vanovka), where witnesses T.N.K. and A. E.M. met an In-driver taxi and received a gift box with a subscriber number +7,702 . The number of the witness in the case is T. N.K., it is established that he called the case number +7 702 from this place..to its owner, witness A. E.M. (case page 91-96, volume 05, case page 71-76, Volume 06, case page 46, Volume 06), and it was approved by a resolution received from the base station.
MOB NUM
NUM
STRT
CELL ID
LAC(TA)
TYPE
702-007-70-55
702-470-63-63
07.05.2021 05:59:42
8087
17251
ACTIV
702-470-63-63
702-007-70-55
07.05.2021 06:02:47
8087
17251
ACTIV
At the same time, on the territory of the transfer and receipt of funds on 05/07/2021, from 05:28 hours to 06:10 hours, there was a subscriber number 8-707-. belonging to defendant A. E., who contacted the mobile phone of the owner of the Lexus 470, black, state number 515 HMB 05 K.B. each time. J. to the number +7 702 ... All of the above information has been proven by the following materials (the resolution on the seizure of incoming and outgoing calls was established by disks: case page 98-100, volume 01, case page 26-28, volume 04, case page 100, volume 04).
2021-05-07T06:07:04
Incoming call
77075050452
77023255778
Tyulkubassky district, village named afterTurara Ryskulova, Tower of KazTeleRadio JSC
2021-05-07T06:05:54
Outgoing call
77075050452
77023255778
Tyulkubassky district, sAkbiik, Kaldybaeva St., b/n
2021-05-07T05:56:27
Outgoing call
77075050452
77023255778
Tyulkubassky district, Tyulkubas settlement, Kobey str., mill
2021-05-07T05:54:58
Outgoing call
77075050452
77023255778
Tyulkubassky district, village named afterTurara Ryskulova, Tower of KazTeleRadio JSC
2021-05-07T05:54:09
Online registration
77075050452
77075050452
Tyulkubassky district, village named afterTurara Ryskulova, Tower of KazTeleRadno JSC
2021-05-07T05:45:36
Outgoing call
77075050452
77023255778
Tyulkubassky district, Tyulkubas settlement, Kazakhtelecom JSC tower
2021-05-07T05:44:56
Online registration
77075050452
77075050452
Tyulkubassky district, Tyulkubas settlement, Kazakhtelecom JSC tower
At the same time, when analyzing the base station under the bridge No.LAC(TA)-17251, CELL ID-8087 Tyulkubassky district, Tyulkubas settlement (Vanovka), where they met an In-driver taxi and received a gift box, it was found that the additional subscriber number was +7 775 . It is a subscriber number belonging to the defendant in the case of E.A., along with this, at that place he contacted K.E.Xie's father. (case file page 30, volume 08), to his subscriber number +7 701 .. Connections of K.E.S. and telephone contacts with the defendant (case page 38-40, volume 04, are fixed in volume 09 with disks in a sealed envelope, a decree on conducting covert control, interception, and unloading of information transmitted over telecommunications networks, and a decree on seizing incoming and outgoing calls).
06.05.2021 23:33
77017777549
77754444044
00:00:48
Other
06.05.2021 23:33
77017777549
77754444044
00:00:48
Incoming call
47255
6432
07.05.2021 4:26
77017777549
77754444044
00:00:00
Outgoing call
47255
6437
07.05.2021 4:29
77017777549
77754444044
00:00:31
Outgoing call
47255
6437
07.05.2021 6:15
77017777549
77754444044
00:0:03
Other
47255
6437
05/07/2021 at 04.26 hours – the subscriber number was redirected +7 775 444 40 44 to the next subscriber number +7 701 .
05/07/2021 06.15 hours – the subscriber number from which the outgoing call was made +7 775 444 40 44 to the next subscriber number +7 701 777 75 49 , conversation duration 01 minutes 03 seconds, location - Turkestan region, Tyulkubassky district, Turar Ryskulov, auyl Azattyk.
Along with this, the case file contains the number 8-747-301-33-46, the specified number was activated on 05/07/2021 at 22:08 in the city of Shymkent (case pages 124, volume 01, case page 100, volume 04, fixed (fixed) on disks in a sealed envelope, a decree on the withdrawal of outgoing and incoming calls).
Along with this, according to the information base of the Ministry of Internal Affairs of the Republic of Kazakhstan, it was established that in 2020 the subscriber number +7 707 505 04 52 he was registered at the time of obtaining a driver's license in the name of the defendant E.A.
At the same time, according to the second episode, to the subscriber number of the injured director of "..Service" LLP, I.K.T. +7 777 055 00 00 , an unknown person called from a subscriber number +7 747 845 83 50 , introduced himself as the director of ".Oil" G.K. and asked to lend him 30,000 US dollars. However, I.K.T. called K.G. on his personal work phone and told him about this situation, the latter said that he had not asked him for any money.
During the verification, it was established that the subscriber number +7 747 845 83 50 , IMEI code No. 359-456-960-552-410 was entered into a telephone (smartphone) device (BS: Shymkent, 159 Adyrbekov str.).
In order to identify the above-mentioned unknown person, the investigative authorities sent a request No.3-4/11307 for outgoing information to the In-driver service on September 21, 2022.
According to the response received from the In-driver service, information was received that orders from the number +7 747 845 83 50 they were made by a user named "Take" and that he was registered on 07/12/2022, and was also registered with IP addresses: 149.27.46.204, 149.27.11.111, 149.27.8.169, 149.27.61.17, 149.27.4.76, 149.27.27.43, 149.27.56.124.
Subsequently, a request was sent to K-sell JSC to determine the User's registration data at the above-mentioned IP addresses (outgoing No. 42/4-4218 dated 09/27/2022).
According to the response received from Kcell JSC, a subscriber number has been registered at the specified IP addresses. +7 775 444 40 44 , who is registered to Olzhas Yesenalin, born on 19.03.2003, the younger brother of the defendant A. E. at the address: Shymkent city, residential district " N.", 35, sq. 7.
During the investigative authorities' operational search activities, it became known that the subscriber number +7 775 444 40 44 registered in the app "Kaspi.kz " the bank belonging to the defendant E.A.
A.V., a specialist witness who testified in the judicial investigation, testified that he works for KceLL JSC and cannot provide answers to questions about the name codes, etc. of cell phones. During the judicial investigation, on the basis of a petition from the defendant's side, an additional request was made to the above-mentioned subscriber numbers at KceLL, ALTEL, TELE2, and additional information was obtained about the actual registration of numbers for the above-mentioned defendant, victims, and witnesses.
(07/11/2023, the time of interrogation is from 11:00 a.m. to 12:00 p.m.).
The Court considers that there are grounds in the judicial investigation for accepting the petition submitted by the injured party, i.e. photographs of cash, a gift box on Kh.A.T.'s mobile phone as evidence directly relevant to the case, i.e. that the victim Kh.A.T. transferred substantial funds, and a gift-a box with cash by means of – O.S.B. sent E.A. as a photo report, photos that were sent to each other via the "Whats app" application between H.A.T. and O.S.B., messages written by him (correspondence).
Since these circumstances are confirmed and reinforced by a sufficient set of named true (reliable) evidence, it follows that the testimony of defendant E.A., who indicates that he did not commit the specified crime and asks for an acquittal, does not find its justification.
The fact that the defendant E.A. is not on psychiatric and drug treatment records is established by the materials attached to the criminal case.
According to the conclusion of the forensic medical examination No. 25-13/61, no injuries were found during the examination of E.A. (case file page 87, volume 07).
According to the conclusion of the forensic medical examination No. 25-13/60, no injuries were found during the examination of T.N.K. (case file page 92, volume 07).
According to the testimony of RM Bet Betting Company LLC on page 81, Volume 08 of the criminal case, E.A., registration date 02/07/2022 (former surname S.A.E., registration date 12/11/19), A.E.M., registration date 08/13/2021, T.N.K. registration date 11/24/2022, it is established that all of them are clients of this partnership.
On pages 84-108, volume 08 of the criminal case, it is stated that Yesenalin A. invested significant funds in the RM Bet betting company.
Forensic medical examination No. 7763 dated 12/22/2022, Shymkent, 130 Argynbekova Street, Big Rooms Hotel, room 301, the substance seized during the search, methcathinone, is an analog of a psychotropic substance (case pages 27-43, volume 09).
It was indisputably established in court that in the course of carrying out his criminal acts, defendant E.A. did not have personal acquaintance with the victims, and there was no trusting relationship between them, and that he committed the crime of embezzlement only by deception.
Therefore, the criminal degree (qualification) of abuse of trust is subject to exclusion on the charge of the defendant E.A.
This conclusion was reached by the court on the basis of the explanations specified in Article 03 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 29, 2017 No. 06 "On judicial practice in fraud cases".
Abuse of trust as a method of fraud consists in the fact that the perpetrator uses the trust that has arisen between him and the owner or another person in charge of the property in order to illegally obtain someone else's property or the right to it for selfish reasons.
In such circumstances, the court considers that in the main trial, the defendant committed E.A. the crimes of fraud, deception, theft of other people's property on an especially large scale, as well as the commission of the crime of fraud, repeated attempted theft of other people's property on an especially large scale – were fully documented by comprehensively and fundamentally researched evidence at the court hearing, the court considers that his actions are correctly qualified as committing criminal offenses provided for in paragraph 02) part 04) of Article 190 and part 03) of Article 24, paragraph 02) of part 04 of Article 190 of the Criminal Code of the Republic of Kazakhstan.
In accordance with paragraph 01 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 04 "On certain issues of criminal punishment", when imposing criminal punishment, courts should strictly observe the general rules for sentencing specified in Article 52 of the Criminal Code of the Republic of Kazakhstan, as well as take into account the severity of the criminal offense, the presence of recidivism and its type, the stage of commission of a criminal offense, the degree of participation of the defendant in the commission of a criminal offense, the significance of his actions for achieving the purpose of the criminal offense and the impact on the nature and extent of the harm caused or possible, whether there is a combination of criminal offenses, the presence of mitigating and aggravating circumstances and punishment, grounds for imposing a more lenient punishment than provided for this criminal offense.
When determining the type and amount of punishment, it takes into account the nature and degree of public danger of the crime committed, the degree of participation of the defendant in the commission of a criminal offense, the importance of his actions in achieving the goals of the criminal offense and the harm caused, mitigating and aggravating circumstances of criminal liability and punishment specified in articles 52, 53, 54 of the Criminal Code of the Republic of Kazakhstan, the identity of the perpetrator.
When sentencing the defendant E.A., circumstances mitigating criminal liability and punishment in accordance with article 53 of the Criminal Code of the Republic of Kazakhstan were not established.
In accordance with article 54 of the Criminal Code of the Republic of Kazakhstan, the court considers that the defendant E.A. has not established circumstances aggravating criminal liability and punishment.
When assigning the amount of punishment to defendant A. E., given that the crimes committed belong to the category of serious crimes and are of a nature with a degree of public danger, he may be given the punishment provided for in the sanctions imposed on him by the article, i.e. applying part 02 of Article 56 of the Criminal Code of the Republic of Kazakhstan, in the presence of a mitigating circumstance that is not provided for as a sign of a committed crime, and in the absence of aggravating circumstances, the term or amount of the main type of punishment may not exceed when committing: a serious crime – from two thirds and part 03 of Article 56 of the Criminal Code of the Republic of Kazakhstan, the term or amount of punishment for attempted crime may not exceed three quarters of the maximum term or amount of the main type of punishment provided for in the relevant article of the Special Part of this Code for a completed crime, and due to the fact that the criminal act committed by defendant E.A., In accordance with part 04 of Article 11 of the Criminal Code of the Republic of Kazakhstan, it is classified as a serious crime that the victim did not forgive him, asked for a severe punishment., the material damage has not been compensated, that he did not embark on the path of correction, that earlier on 03.10.2018 he was tried by the Saryagash District Court of the Turkestan region for the crime of fraud, and re–committed a serious crime. The court concludes that it is sufficient for him to impose a custodial sentence to correct it, without confiscation of property in the amount of the sanction specified in paragraph 02) of part 04) of Article 190, paragraph 03) of Article 24, paragraph 02) of part 04 of Article 190 of the Criminal Code of the Republic of Kazakhstan.
In accordance with the sanction of part 04 of Article 190 of the Criminal Code of the Republic of Kazakhstan, it is indicated with or without deprivation of the right to hold certain positions or engage in certain activities.
However, due to the fact that the defendant E.A. did not work anywhere during the commission of the crime, i.e. in the civil service, the court considers that the specified additional punishment is not imposed.
According to Article 20 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 04 "On certain issues of criminal punishment"... if there is no information about the criminal nature of the origin of the property in the case or the property has not been established at all, confiscation of the property is not ordered, including under articles The special part The Criminal Code of the Republic of Kazakhstan, which provides for the mandatory imposition of this type of additional punishment. The application of article 55 of the Criminal Code of the Republic of Kazakhstan is not required in this case. In all cases, the court's decision to confiscate property must be motivated in the verdict with reference to the presence or absence of grounds provided for in article 48 of the Criminal Code of the Republic of Kazakhstan.
In accordance with part 01 of Article 48 of the Criminal Code of the Republic of Kazakhstan, confiscation of property is the forced gratuitous seizure and conversion into State ownership of property owned by a convicted person, obtained by criminal means or acquired with funds obtained by criminal means, as well as property that is an instrument or means of committing a criminal offense.
Consequently, the defendant E.A. is not being given additional punishment in the form of confiscation of property, since the pre-trial investigation body has not provided evidence of her criminally acquired property.
In accordance with paragraph 02) of part 03-1 of Article 62 of the Criminal Code of the Republic of Kazakhstan, the days of the defendant E.A. in custody, that is, starting from December 22, 2022, until the date of entry into force of the sentence, must be counted at the rate of one day in custody for one and a half days of serving a sentence of imprisonment in a penal institution. medium security systems.
In accordance with paragraph 02) of part 05 of Article 46 of the Criminal Code of the Republic of Kazakhstan, serving a sentence is subject to appointment in an institution of the medium-security penal system.
The preventive measure "detention in custody" before the verdict enters into force must be left unchanged.
The term of serving the sentence is calculated from the date of entry into force of the sentence.
In accordance with article 170 of the Criminal Procedure Code of the Republic of Kazakhstan, when passing a guilty verdict, the court fully or partially satisfies the civil claim.
The material statement of claim of the victim H.A.T. is subject to full satisfaction.
54,818,640 (fifty-four million eight hundred and eighteen thousand six hundred and forty) tenge is to be recovered from the civil defendant E.A. in favor of the civil plaintiff H.M.A. (according to the National Bank of the Republic of Kazakhstan on July 31, 2023, 1 US dollar is 445.68 tenge, i.e. 123,000 US dollars at the time of the breakdown into tenge amounts to 54,818,640 tenge).
A state fee (duty) in favor of the state in the amount of one percent of the recovered funds in the amount of 548,187 (five hundred forty-eight thousand one hundred eighty-seven) tenge is to be collected from the defendant E.A..
1,000,000 (one million) tenge paid for representative assistance is to be recovered from the civil defendant A.E. in favor of the civil plaintiff H. M.A.
As explained in Part 03 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated 07/27/2015 No. 07 "Application by courts of legislation on compensation for moral damage", personal non-property benefits and rights, the violation, deprivation or diminution of which may result in moral harm to the victim, should be understood as benefits or rights belonging to a citizen from birth, granted by law, which are inseparably related to his personality. The benefits that belong to a person from birth include life, health, honor, dignity, freedom, and inviolability of the individual, and the rights of a citizen granted by law include the right to inviolability of home or property; to personal and family secrets, the secrecy of telephone, telegraphic messages and correspondence; to use a name; to an image; authorship and other personal non-property rights provided for by the legislation on copyright and related rights; freedom of movement and choice of place of residence; the right to receive reliable information, as well as other rights provided for by law.
Moral harm should be understood as the moral or physical suffering experienced by a citizen as a result of an unlawful violation, diminution or deprivation of personal non-property benefits and rights belonging to him.
And in accordance with Part 08 of the above-mentioned Resolution, the courts, when determining the amount of compensation for moral damage, must take into account both a citizen's subjective assessment of the severity of the moral or physical suffering caused to him, and objective data indicating this, in particular: the vital importance of personal non-property benefits and rights (life, health, freedom, inviolability of the home, personal and family secrets, honor and dignity, etc.); the degree of moral or physical suffering experienced by the victim (deprivation of liberty, bodily injury, loss of close relatives, loss or disability, etc.); the form of guilt (intent, negligence) of the harm-doer, when it is necessary to compensate for moral harm.
Due to the fact that the victim, H.A.T., did not submit his evidentiary materials to the court within the specified reasonable time, this moral claim must be dismissed.
E.A. is to be provided with a one-month period for voluntary compensation for a civil claim and for the collection of a state fee (duty), to clarify that in case of non-fulfillment it is collected outside his will.
In accordance with Part 02 of Article 10 of the Law of the Republic of Kazakhstan dated January 10, 2018 No. 131-VI "On the Victims Compensation Fund", when a court passes a guilty verdict, a compulsory payment is collected from the perpetrators to the Victims Compensation Fund on the basis of Articles 98-1 and 98-2 of the Criminal Code of the Republic of Kazakhstan.
In accordance with Article 98-2 of the Criminal Code of the Republic of Kazakhstan, compulsory payment is collected by the court in accordance with the procedure provided for by the legislation of the Republic of Kazakhstan on the Compensation Fund for Victims, in the amount of: serious crimes – in the amount of 20 (twenty) monthly calculation indices (MCI).
Based on articles 98-1, 98-2 of the Criminal Code of the Republic of Kazakhstan, a compulsory payment in favor of the Victims Compensation Fund of the Republic of Kazakhstan in the amount of twenty monthly calculation indices, 1 MCI = 3,063 tenge x 20 MCI = 61,260 (sixty-one thousand two hundred sixty) is to be recovered from defendant A. E..
In accordance with part 03 of Article 118 of the Criminal Procedure Code of the Republic of Kazakhstan, the fate of the material evidence in the case is resolved.
Guided by the articles 387-390, 393, 395-398, 401, 402, 403, 414, 417, 418 of the Criminal Procedure Code of the Republic of Kazakhstan, the Court agreed:
E.A. – to find guilty of committing a crime under paragraph 02) of part 04) of Article 190 and part 03) of Article 24, paragraph 02) of part 04 of Article 190 of the Criminal Code of the Republic of Kazakhstan
According to paragraph 02) of part 04) of Article 190 of the Criminal Code of the Republic of Kazakhstan – to impose a sentence of imprisonment for a period of 06 (six) years.
According to part 03) of Article 24, paragraph 02) of part 04 of Article 190 of the Criminal Code of the Republic of Kazakhstan – to impose a sentence of imprisonment for a period of 05 (five) years.
In accordance with parts 01, 03 of Article 58 of the Criminal Code of the Republic of Kazakhstan, by commuting a less severe punishment to a more severe one, it is necessary to impose a sentence of imprisonment for a period of 06 (six) years.
Serving a sentence should be determined in an institution of the medium-security penal system.
The measure of restraint should remain unchanged until the verdict comes into force.
The term of serving the sentence is calculated from the date of entry into force of the sentence.
In accordance with paragraph 02) of part 03 of Article 62 of the Criminal Code of the Republic of Kazakhstan, the days of A.E.'s detention, that is, the period starting from December 22, 2022 until the date of entry into force of the sentence, should be calculated based on one day in custody for one and a half days of serving a custodial sentence in an institution of the penal system. medium security.
The material claim of the civil plaintiff H.M.A. is fully satisfied.
From the convicted A.E. – to recover in favor of the state in the amount of one percent of the recovered funds in the amount of 548,187 (five hundred forty-eight thousand one hundred eighty-seven) tenge.
From the convicted A.E. – in favor of the civil plaintiff H.M.A. 54,818,640 (fifty-four million eight hundred eighteen thousand six hundred forty) tenge.
From the convicted Aydin Yesenalin – to collect a state fee (duty) in the amount of one percent of the funds collected in favor of the state in the amount of 548,187 (five hundred forty-eight thousand one hundred eighty-seven) tenge.
From the convicted A.E. – to recover 1,000,000 (one million) tenge paid for representative assistance in favor of the civil plaintiff H.M.A.
From the convicted A.E., to recover in favor of the state the costs of forensic examination 39,832.78 (thirty-nine thousand eight hundred and thirty-two tenge seventy-eight tiyn).
From the convicted A.E., in accordance with part 03 of Article 98-2 of the Criminal Code of the Republic of Kazakhstan, to collect a compulsory payment in favor of the Victims Compensation Fund of the Republic of Kazakhstan in the amount of twenty monthly calculation indices, 1 MCI = 3,063 tenge x 20 MCI = 61,260 (sixty one thousand two hundred sixty).
The Court of Appeal upheld the verdict.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
